Short Answer

In North Carolina, the Clerk of Superior Court can continue (reschedule) a will‑production hearing for good cause, including hospitalization. The custodian must still comply with the summons by either producing the original will or swearing to its whereabouts by the deadline the Clerk sets. If they do not comply without good cause, the Clerk may issue a show‑cause order and use civil contempt to compel compliance. If the original cannot be produced, a properly supported petition to probate a copy as a lost or destroyed will may proceed.

Understanding the Problem

You’re in North Carolina probate, asking whether a court‑ordered hearing to compel someone to turn over a decedent’s original will can go forward if that person is hospitalized. Here, the person previously claimed not to know about a will, but you have a signed copy and a hearing set before the Clerk of Superior Court to compel production or an explanation under oath.

Apply the Law

North Carolina law lets an interested person ask the Clerk of Superior Court to issue a summons ordering the will’s custodian to produce the original or, under oath, explain where it is or what happened to it. The summons sets a specific deadline. Good‑cause conflicts (like hospitalization) can justify a continuance, but they do not erase the duty to comply. If the original cannot be produced after diligent search and explanation, the propounder may seek to probate a copy as a lost or destroyed will by clear, strong, and convincing evidence.

Key Requirements

• Sworn application: File an affidavit showing a will exists and that a person in North Carolina has (or had) custody.
• Summons and deadline: The Clerk issues a summons ordering production of the will or a sworn accounting of its whereabouts by a date certain, typically served under Rule 4.
• Continuance for good cause: If hospitalized, the custodian can request a continuance; they may still comply by providing a sworn statement about the will’s location.
• Enforcement: Willful noncompliance can trigger a show‑cause order and civil contempt until the person complies (production or sworn accounting).
• If the original is unavailable: The propounder may offer a copy as a lost/destroyed will, proving death, due execution, contents, loss, and that the loss was not a revocation, by clear, strong, and convincing evidence.

What the Statutes Say

• North Carolina Gen. Stat. § 28A-2A-4 (Compel production of will) – Clerk may summon a person to produce a will or swear to its whereabouts.
• North Carolina Gen. Stat. § 5A-23 (Show cause for civil contempt) – Sets procedure for a show‑cause hearing if an order is disobeyed.
• North Carolina Gen. Stat. § 28A-2A-8 (Proof of attested will) – Describes evidentiary paths to prove an attested will when witnesses or originals are unavailable.
• North Carolina Gen. Stat. § 14-77 (Destroying or concealing a will) – Criminalizes willful destruction or concealment of a will.

Analysis

Apply the Rule to the Facts: You filed a sworn application to compel production, and the Clerk set a hearing and deadline. If the other person is hospitalized, the Clerk can continue the hearing for good cause; the person can still comply by submitting a sworn statement identifying the will’s location or explaining its disposition. If they do not comply without good cause, the Clerk may issue a show‑cause order and use civil contempt to compel compliance. If the original cannot be produced after diligent search, you may proceed to probate the copy as a lost will with affidavits proving due execution, contents, loss, and no revocation.

Process & Timing

1. Who files: The interested person (e.g., named beneficiary or prospective executor). Where: Clerk of Superior Court in the North Carolina county where the decedent was domiciled. What: A sworn application (affidavit) asking the Clerk to issue a summons to produce the will; there is no standard AOC form for this request. When: File as soon as you learn someone is withholding or has custody of the will; the Clerk’s summons sets a date certain to comply.
2. The Clerk issues a summons directing production of the original will or a sworn explanation of its whereabouts by the date in the order; service is typically under Rule 4. If the custodian is hospitalized, request a continuance and provide medical documentation if available.
3. If there is no compliance without good cause, expect a show‑cause hearing and possible civil contempt to compel production. If the original remains unavailable after diligent search and explanation, file to probate the copy as a lost/destroyed will with supporting affidavits; if proven, the Clerk issues a Certificate of Probate.

Exceptions & Pitfalls

• Good cause continuance: Hospitalization can justify postponing the hearing, but it does not eliminate the duty to comply with the summons.
• Impossibility vs. willfulness: Civil contempt requires willful disobedience; if the person cannot comply (e.g., the will is no longer in their possession) but swears to its disposition or location, contempt may not be appropriate.
• Service traps: Ensure proper Rule 4 service of the summons; improper service can derail enforcement.
• Lost‑will hurdles: If the original was last in the testator’s possession and is missing at death, there is a rebuttable presumption of revocation; be prepared with evidence of diligent search and facts showing non‑revocation.
• Criminal risk: Intentional concealment or destruction of a will can be referred to law enforcement under the criminal statute.

Talk to a Probate Attorney

If you’re dealing with a will custodian who missed a hearing or won’t turn over the original, our firm has experienced attorneys who can help you understand your options and timelines. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.